Art Law Report

New VARA Ruling Muddies Analysis on Moral Rights and Significance of “Site Specific” Art

Posted by Nicholas O'Donnell on November 12, 2015 at 6:37 AM

A recent injunction ruling that prohibited the destruction of the “Bicentennial Freedom Mural” in Corona, California had occasion to consider the rights asserted by the plaintiffs and artists under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A. The order ultimately granted the injunction but on different grounds, holding that the plaintiffs were unlikely to prevail on their VARA claim.

Read More

Topics: work of recognized stature, Mural Conservancy of Los Angeles, 555 U.S. 7, Moral Rights, United States Army Corps of Engineers, Cal. Civ. Code §§ 987 and 989, Inc., Visual Artists Rights Act of 1990, California, Santa Ana River Mainstem Project, Pippa Loengard, 54 U.S.C. § 306108, VARA, Kernochan Center for Law Media and the Arts, Corona, Ronald Kammeyer, Columbia Law School, Phillips v. Pembroke Real Estate, Copyright, Prado Dam, NHPA, Administrative Procedure Act, National Historic Preservation Act, 17 U.S.C. § 106A(a)(3)(A)-(B), 459 F.3d 128, 5 U.S.C. §§ 701-706, Winter v. Natural Res. Def. Council, SARM

Shepard Fairey Wanted on Vandalism Charge for Street Art in Detroit—Will This be the VARA Test Case?

Posted by Nicholas O'Donnell on June 25, 2015 at 8:10 AM

Detroit police have issued a warrant for well-known artist Shepard Fairey in connection with his recent visit to the city, on suspicion of vandalism. While Fairey was apparently in Detroit to paint a commissioned mural at One Campus Martius, he told the Detroit Free Press, “I still do stuff on the street without permission. I'll be doing stuff on the street when I'm in Detroit.” According to the Free Press:

Read More

Topics: Richard Prince, Jeff Koons, Patrick Cariou, Moral Rights, Andre the Giant, Graffiti Art, Visual Artists Rights Act of 1990, Barack Obama, One Campus Martius, Banksy Does New York, VARA, Banksy, Shepard Fairey, appropriation copyright, Copyright, 5Pointz, Hope, Detroit Free Press, Associated Press, Fair Use

5Pointz Property Owner Sued Again Over Whitewashing of Graffiti—Measure of Damages Bears Watching

Posted by Nicholas O'Donnell on June 16, 2015 at 6:33 AM

Several street artists have sued the property owners of the building in Queens that became known as “5Pointz”—a “Mecca” of graffiti and street art. This is the second such lawsuit, after another group of artists failed to obtain a preliminary injunction in November, 2013, and the owners whitewashed nearly all of the painting on the buildings. The new lawsuit seeks damages related to the whitewashing itself, alleging that it was done hastily and secretly without giving the artists sufficient time either to remove or document their work. It relies on the Visual Artists Rights Act of 1990 (VARA), the lone moral rights provision of the Copyright Act.

Read More

Topics: HBO, Copyright Act, Ishmael, Moral Rights, Richard Miller, Cady Nolan, Rodney Rodriguez, FCEE, Christoph Büchel’s, Graffiti Art, Visual Artists Rights Act, Patch Whiskey, Kai Niederhausen Semor, Kenji Takabayashi, recognized stature, Banksy Does New York, Jimmy C, VARA, Jerry Wolkoff, Bienbenido Guerra, Luis Gomez, MassMoCA, Banksy, TOOFLY, 17 U.S.C. § 106A, Carlo Nieva, Copyright, 5Pointz, PANIC, James Cochran, Sotheby's, Maria Castillo

Books of Note: Visual Arts and the Law by Judith Prowda

Posted by Nicholas O'Donnell on January 15, 2015 at 6:02 PM

Periodically I like to make note of books about art law that I find exceptional. Art law is many things to many people, and one of the interesting things in surveying the literature is seeing what selection various authors make in terms of their subject matter. I reviewed the excellent Art Collecting Legal Handbook by Massimo Sterpi and Bruno Boesch recently, and the strength of that book was their choice to take a set of questions recurring in art collecting in particular to experts around the world. It’s a fantastic resource for collectors and lawyers.

Read More

Topics: Art Finance, Stropheus, Auctions, Judith Prowda, authentication, droite de suite, Moral Rights, art law, expert opinions, dealers, Restitution, Massimo Sterpi, Art Collecting Legal Handbook, Galleries, Copyright, Books, . Auctions, Sotheby’s Institute, Fair Use, Berne Convention, Bruno Boesch

Sponsor Plans to Reintroduce Resale Royalty Rights, Old Contract Idea Resurfaces as Alternate Solution

Posted by Nicholas O'Donnell on January 14, 2015 at 11:55 AM

After word got around that the American Royalties Too Act of 2014 had expired, (covered by Whitney Kimball at ArtFCity, Coline Milliard at ArtNet here, and Jillian Steinhauer at Hyperallergic here), the natural question of course remains, “what’s next.” Steinhauser spoke to John Doty, director of Jerrold Nadler’s office. Doty said, “Congressman Nadler does plan to reintroduce the bill this Congress. An exact date and exact bill language have not yet been decided.

Read More

Topics: Resale Royalty Rights, Resale Royalties, Coline Milliard, Hyperallergic, Moral Rights, Kibum Kim, Whitney Kimball, art, ArtFCity, Jerrold Nadler, Jillian Steinhauer, The Contract, Copyright, Seth Sieglaub, John Doty, ArtNet, Robert Projanksy, American Royalties Too Act of 2014, Artist’s Reserved Rights Transfer and Sale Agreeme

With New Congress, Resale Royalties Bill and Foreign Cultural Exchange Jurisdictional Immunity Clarification Act Are Dead (Again)

Posted by Nicholas O'Donnell on January 5, 2015 at 9:49 AM

A quirk of parliamentary procedure is that any bill in Congress exists only for so long as that particular Congress is in session. This week, the 114th Congress took its seats, meaning that any bill not passed by both the House of Representatives and the Senate, and signed by the President, is a dead letter. This is the fate of many, many bills—indeed most.

Read More

Topics: Legislation, Resale Royalties, Chuck Close, Moral Rights, Nazi-looted art, Foreign Sovereign Immunities Act, 28 U.S. § 1605, Art Law Day, 114th Congress, 22 U.S.C. § 2459, City of Amsterdam, Rep. Jerrold Nadler (D-NY), FSIA, expropriation exception”, droit de suite, IFSA, Foreign Sovereign Immunities, Senate, House of Representatives, Immunity from Seizure Act, President, Foreign Cultural Exchange Jurisdictional Immunity

10, 9, 8…the Biggest Art Law Report Stories of 2014 and a Look Ahead

Posted by Nicholas O'Donnell on December 31, 2014 at 5:00 AM

As the ball teeters above Times Square, and the Glühwein begins to mull on the Art Law Report stove (don’t forget the cinnamon!), a gimmicky but apropos act of reflection is to look back at the biggest stories of 2014, both in art law generally and for yours truly and Sullivan & Worcester LLP. In highly subjective, unverifiable, and immediately criticizeable order, here they are. Thanks as always for reading, and best wishes for in interesting, prosperous New Year. If you agree, disagree, or otherwise, please continue to stay in touch and carry the conversation forward.

Read More

Topics: Comedy Central, Deaccession, Schwabinger Kunstfund, Charitable Foundations, National Gallery of Art, Knoedler, Cornelius Gurlitt, Blogs, authentication, authenticity, parody, William Corcoran, Moral Rights, Above the Law, Germany, George Washington University, Glühwein, Nazi-looted art, Gurlitt Collection, Norton Simon, Graffiti Art, Superior Court, Cy Pres, Washington DC, VARA, Detroit Institute of Arts, Bankruptcy, Corcoran College of Art + Design, Dumb Starbucks, Preemption, Asher Edelman, DIA, Restitution, Marei Von Saher, Artmentum GmbH, Bavaria, Sullivan & Worcester LLP, World War II, Copyright, Times Square, Art Fairs, Kunstmuseum Bern, Corcoran Gallery, Ninth Circuit Court of Appeals, Museums, Raubkunst, Detroit Bankruptcy, Fair Use, Münchner Kunstfund, Foreign Cultural Exchange Jurisdictional Immunity, Graffiti, Civil Forfeiture, Art Law Report

Full Ninth Circuit to Review California Resale Royalty Act En Banc

Posted by Nicholas O'Donnell on October 31, 2014 at 7:48 AM

Several weeks ago, the parties to the appeal over the constitutionality of the California Resale Royalty Act (CRRA) briefed the question about whether the Ninth Circuit Court of Appeals should hear the case, rather than a three-judge panel that would otherwise be assigned to the case. The Ninth Circuit granted the petition yesterday, meaning the appeal will now go before the full court.

Read More

Topics: Legislation, Foie Gras, 538 U.S. 644, N. Randy Smith, 729 F.3d 937, Auction Houses, California Health & Safety Code § 25982, Chuck Close, 730 F.3d 1070, Moral Rights, Commerce Clause, Affordable Care Act, Ass’n des Eleveurs de Canards et d’Oies du Quebec, Judge Jacqueline H. Nguyen, Jerrold Nadler, Christie's, Research & Mfrs. of Am. v. Walsh, California Resale Royalties Act, Ethanol, Dormant Commerce Clause, 491 U.S. 324, U.S. Constitution, Copyright, royalties, Garcia, Ninth Circuit, Cal. Code Regs. tit. 17 §§ 95480–90, Sotheby's, Rocky Mountain Farmers Union v. Corey, Healy v. Beer Inst., Ferdinand F. Fernandez, eBay, Google, Mary H. Murguia

Graffiti, Vandalism, and Public Expression: Public Art and its Uneasy Relationship with the Law

Posted by Nicholas O'Donnell on October 2, 2014 at 1:24 PM

Recurring events involving public art have underscored the tension between that expression and the law. Banksy’s “residence” in New York last fall broached this subject, but this summer’s Brooklyn Bridge flag incident, and several new lawsuits asserting copyright in graffiti will test the bounds of what the law protects and what it permits. As Banksy says in one of his murals, "graffiti is a crime."

Read More

Topics: Burrow-Giles Lithographic Co. v. Sarony, Ahol Sniffs Glue, David Anasagasti, Steel, City as Canvas, Moral Rights, Argentina, Public Art, Graffiti Art, Philippa Loengard, Visual Artists Rights Act of 1990, Leonardo’s Last Supper, Columbia Law School’s Kernochan Center for Law Med, Chicago, Museum of the City of New York, VARA, Public Expression, Michael Bloomberg, American Eagle, Terry Gilliam, Banksy, 17 U.S.C. § 106A, Copyright, Buenos Aires, 5Pointz, Revok, Roberto Cavalli, vandalism, Reyes, Graffiti, The Atlantic, New York

Have Some Foie Gras with Your Ethanol: Auction Houses Urge Ninth Circuit Not to Rehear California Resale Royalties Act Argument

Posted by Nicholas O'Donnell on September 23, 2014 at 8:43 AM

The defendants in the case on appeal over the constitutionality of California’s Resale Royalty Act have just briefed the court’s question about whether the full court should rehear the case. Responding to an order that the parties explain whether the case conflicts with recent Ninth Circuit precedent, Christie’s, Sotheby’s, and eBay all argued emphatically that no conflict justifies reinstating the law that a District Court struck down in 2012.

Read More

Topics: Legislation, Foie Gras, Resale Royalties, 538 U.S. 644, N. Randy Smith, 729 F.3d 937, Auction Houses, California Health & Safety Code § 25982, Chuck Close, 730 F.3d 1070, Moral Rights, Commerce Clause, Affordable Care Act, Innocence of Muslims, Ass’n des Eleveurs de Canards et d’Oies du Quebec, Judge Jacqueline H. Nguyen, Christie's, Research & Mfrs. of Am. v. Walsh, California Resale Royalties Act, Ethanol, Dormant Commerce Clause, 491 U.S. 324, U.S. Constitution, Copyright, royalties, Garcia, Ninth Circuit, Cal. Code Regs. tit. 17 §§ 95480–90, Sotheby's, Rocky Mountain Farmers Union v. Corey, Healy v. Beer Inst., Ferdinand F. Fernandez, eBay, Google, Low Carbon Fuel Standard, Mary H. Murguia

About the Blog


The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities.

Meet the Editor

Learn more about our Art & Museum Law practice

Subscribe to Blog

Posts by Topic

see all